BROWN v. STATE (2009)

Darrell E. Brown was convicted of two counts of aggravated assault, three counts of aggravated battery, kidnapping with bodily injury, and possession of a knife during the commission of a felony.   Brown's conviction was affirmed on appeal by this Court.  Brown v. State, 275 Ga.App. 99, 619 S.E.2d 789 (2005).   Since that time, Brown, pro se, has filed numerous motions including, on September 2, 2008, an amended motion for an out-of-time appeal, the denial of which he now appeals.   In the order denying the motion, the trial court noted that it had denied and dismissed Brown's previous motions for new appeal and for an out-of-time appeal which he filed August 12, 2008.¹  It further noted that Brown's conviction had been affirmed on direct appeal.

 “An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken.   It is the remedy for a frustrated right of appeal.”   (Citations and punctuation omitted.)  Smith v. State, 266 Ga. 687, 470 S.E.2d 436 (1996).  “[A] defendant is not entitled to a second direct appeal from his judgment of conviction.”  Richards v. State, 275 Ga. 190, 191, 563 S.E.2d 856 (2002).   A defendant who has had a conviction affirmed on direct appeal may obtain further review of the judgment of conviction only “by filing an extraordinary motion for new trial or a petition for writ of habeas corpus.”  Id. at 191, n. 1, 563 S.E.2d 856.

 As this Court has previously held in relation to Brown's attempts at further review of his conviction, “[h]e is not entitled to another bite at the apple by way of a second appeal.”  Jackson v. State, 273 Ga. 320, 540 S.E.2d 612 (2001).   He has already had a direct appeal, and raises no arguments now that he could not have raised then.

Since an out-of-time appeal is not available to one whose conviction has been affirmed on direct appeal, the denial of a motion for out-of-time appeal filed by [Brown] is not subject to direct appeal to the appellate courts.   Accordingly, [Brown's] direct appeal from the denial of his motion for out-of-time appeal is dismissed.

Richards v. State, supra, 275 Ga. at 191-192, 563 S.E.2d 856.

Appeal dismissed.

FOOTNOTES

1.   Brown filed an application for discretionary review of that ruling, which this Court dismissed in October 2008.

BARNES, Judge.

MILLER, C.J., and ANDREWS, P.J., concur.